Palmer v Bunnings Limited T/A Benchmark Building Supplies HC Auckland CIV 2010-404-825

[2010] NZHC 1063

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-825

BETWEEN  GRAHAM ASHLEY ROBERT PALMER Appellant

ANDBUNNINGS LIMITED TRADING AS BENCHMARK BUILDING SUPPLIES Respondent

Hearing:         27 May 2010

Appearances: Appellant appears in person

S W Shin for Respondent

Judgment:      16 June 2010

JUDGMENT OF MILLER J

[1]      A  default  judgment  was  granted  in  the  District  Court  for  the  sum  of

$33,332.67  on  19  September  2009.    It  was  granted  after  a  Judge  struck  out Mr Palmer’s defence for non-compliance with orders made on 8 September requiring that he file and serve an amended statement of defence and affidavit of discovery within seven days, failing which the defence would be struck out by 15 September. No documents were filed.

[2]      Mr Palmer moved to set aside the default judgment, saying that he had not been served with the Court’s interlocutory orders.   That application was refused. The Judge recorded:

[7]       In  accordance  with  the  usual  practice  and  with  the  Rules,  the plaintiff filed its affidavit of documents at the Court on 9 May 2008.   N affidavit was filed by the defendant, which caused the plaintiff to make an application to the Court as a telephone conference had been convened for 16

May 2008 at 9.15am.  Notice of the conference was given to Mr Palmer at

GRAHAM ASHLEY ROBERT PALMER V BUNNINGS LIMITED TRADING AS BENCHMARK BUILDING SUPPLIES HC AK CIV 2010-404-825  16 June 2010

his address for service (PO Box 5419, Otahuhu).  During the course of the conference, Judge Harvey made the following directions:

(i)       An affidavit discovery be filed by Mr Palmer within 14 days. (ii)    Mr Palmer to file an amended statement of defence within

14 days.

(iii)     Inspection of documents within 28 days.

Notice of the making of those orders was sent by the Court to Mr Palmer at his address (PO Box 5419, Otahuhu).  No steps having been taken by him, a further telephone conference was convened for 8 September 2008.  At that conference, Judge Harvey made the following further directions:

(i)If Mr Palmer does not file and serve an amended statement of defence and affidavit of discovery within seven days, defence of defendant may be struck out by 15.9.08.

A formal notice of that order was also sent to Mr Palmer at his address for service (PO Box 5419, Otahuhu) by the Court on 8 September 2008.

[8]       No  further  steps  having  been  taken  and  a  further  memorandum having been filed by the plaintiff on 19 September 2009, Judge Harvey directed as follows:

(i)        Order striking out defence accordingly. (ii)          Judgment to plaintiff.

(iii)      Plaintiff to submit memorandum of quantum of judgment and costs.

[9]       The judgment was finally sealed in the total sum of $33,332.67.

[3]      The  Judge  was  wholly  unpersuaded  that  the  application  to  set  aside  the judgment had any merit.  He clearly rejected the submission that the documents had not been served, finding that they had been sent by the Court to Mr Palmer’s address for service, PO Box 5419, Otahuhu.

[4]      The Judge was wrong about the address for service.   Mr Palmer filed a statement of defence in the District Court on 27 July 2007, stating that his address for service was 11-13 Bairds Road, Otahuhu, or by post PO Box 5419, Auckland (not Otahuhu).   The defence specified no items should be posted to 11-13 Bairds Road as New Zealand Post does not deliver to that address.

[5]      No issue was taken with the sufficiency of this address for service.

[6]      I observe that as Mr Palmer appeared in person, he was not permitted to give a PO Box as an address for service under the former District Courts Rules, which were in effect until 1 November 2009.[1]   He gave a physical address, and so was

entitled to be served.[2]    However, postal service is relied on here.   I approach the

appeal  on  the  basis  that  having  been  permitted  to  give  a  PO  Box,  a  privilege normally confined to lawyers, Mr Palmer cannot dispute service of any document that was served there in terms of the Rules.  Service at a PO Box number is proved by proving, by means of an affidavit in Form 14, that the document was posted to that address.

[1] District Courts Rules 2009 r 43, r 214 and r 3.

[2] Rule 241

[7]      In the application to set aside the default judgment, and in this Court on appeal, the appellant maintains that no documents were served at the addresses for service he had given.  There is reason for scepticism about the appellant’s claims that the  documents  did  not  come  to  his  attention;  he  has  variously  claimed  that documents were posted to 11-13 Bairds Rd, delivered to another person at 13a Bairds Rd, or sent to PO Box 5419, Otahuhu, which box number does not exist.

[8]      A  number  of  documents  were  apparently  sent  to  the  appellant  by  the respondent or the registry.  Court records of telephone conferences were 6 May 2008 and 8 September 2008 indicate that notices were sent to PO 5419, Otahuhu, Auckland.  When obtaining the default judgment the respondent’s counsel advised by  memorandum  that  a  letter  detailing  the  unless  orders  had  been  sent  to  the appellant by letter of 15 August.  The letter was attached.  It was addressed to PO Box 5419 Auckland.  No affidavit of service was provided.  An affidavit filed on the application to set judgment aside stated that it was posted to Box 5419, Wellesley St, Auckland, but that is a different Post Office, and the deponent was the national credit manager for the respondent.   It is not clear on what basis he can give admissible evidence of service.

[9]      As mentioned, the Judge accepted that the documents had been sent to the appellant at PO Box 5419, Otahuhu.  It seems there is no such box number.

[10]     In this Court, the hearing was preceded by two attempts to have the appeal struck out.  The first was advanced, by memorandum of counsel, on the basis that the address  for  service  in  this  Court  325  Great  South  Road,  Manurewa,  is  a  false address.  The appellant gave that as the address of his company, Truck Wash Express Limited, but in fact another business, an escort agency, is located there.   The respondent also claimed, oddly, that it was prejudiced by the appellant’s failure to supply the  correct  address  for  service  as  counsel  had  not  been  able  to  prepare submissions in reply.  In a further memorandum, counsel advised that Truck Wash Express does appear to exist at 325 Great South Road, Manurewa, but again sought an order that the appeal be dismissed, this time for failure to provide submissions in time.  The appellant’s submissions were due by 12 May, but were not filed until 26

May.  In the end an adjournment was not pursued.

[11]     It  was  necessary  that  the  unless  orders  be  served,  and  service  must  be proved.[3]   There was no evidence before the Judge who granted the default judgment that Mr Palmer was served with notice of the 19 September hearing.   The orders were not, on the face of it, delivered to 11-13 Bairds Rd.   The respondent had produced a letter addressed to PO Box 5419 Auckland.  But the only affidavit, filed after the fact, said that they were posted to PO Box 5419, Wellesley St Auckland, a

different Post Office.

[3] Rule 218

[12]     Faced with this, Mr Shin sought leave to file a further affidavit of service.  I indicated that if service can be proved in terms of the Rules I would dismiss the appeal.  I record that Mr Palmer asserted he did not receive the papers and said that mail sent to the PO Box was not always put into it, but having been permitted to give a box number it was his responsibility to see that the box was properly administered. If it was posted to the Box number I would infer that it was received.

[13]     I also record that Mr Palmer complained about the guarantee upon which the debt was based, but no such allegation is made in his grounds of appeal or written

submissions, and in any event he has no answer to the default judgment if indeed he did ignore notice of the unless orders.

[14]    As matters turned out, service was proved.   Filed were three affidavits establishing that service of all relevant documents was effected at PO Box 5419, Auckland.   Those relevant documents were the Bunnings list of documents, the memorandum for a telephone conference of 16 May 2008, a letter of 15 August

2008, and the letters and memoranda of 4 and 16 September 2008.   In each case these documents were sent in envelopes displaying DX postal windows and collected by a courier firm which delivered the mail to a DX mail collection point, from where New Zealand Post would deliver letters addressed to PO boxes.   If a letter is unclaimed it is returned.  None of the letters in this case were returned.

[15]    I am satisfied that this is sufficient evidence of service.   The appeal is accordingly  dismissed.     The  respondent  is  entitled  to  costs  on  a  2B  basis. Memoranda may be filed if costs cannot be agreed.

Miller J

Solicitors:

Craig Griffin & Lord, Auckland for Respondent